MEHRUNISSA AND OTHERS Vs. KHATOON AND OTHERS

JUDGEMENT

(1.) The appellants have filed this appeal being aggrieved by judgment and decree dated 16.02.1996 passed by the Fifth Additional Judge to the Court of District Judge, Rewa in Civil Suit No.15-A/1995, whereby the suit filed by the respondents for declaring the gift deed dated 10.12.1982 as null and void to the extent of 1/6th share therein of the respondent/plaintiffs and that it shall not be effective to the extent of 1/6th share of the respondents/plaintiffs.

(2.) The brief facts, leading to the filing of the present appeal, are that the appellants are the children of the second wife of Hamid Raza, brother of the original plaintiff Khatoon Bi. The entire property initially belonged to Haji Sheikh Chhedi who had four issues, two sons namely, Hamid Raza and Dawood Raza, and two daughters namely, Khatoon Bi and Bafateen. After the death of Haji Sheikh Chhedi, Dawood Raza filed a suit for partition of the property which was registered as Civil Suit No.2-A/63 (2-A/69). In the said suit Dawood Raza asserted that he and his brother Hamid Raza had 1/3rd share each in the property while both his sisters together i.e. Khatoon Bi and Bafateen had 1/3rd share i.e. 1/6th each in the property. In the said suit Khatoon Bi, plaintiff/respondent in the present proceedings, filed a written statement acceding to the aforesaid position alleged by the plaintiff Dawood Raza. However, subsequently, both the brothers, i.e. Hamid Raza and Dawood Raza, entered into a compromise and divided the entire property amongst themselves and withdrew the suit as far as the two sisters were concerned. On the basis of the compromise, civil suit No.2-A/63 (2-A/69) was withdrawn after recording the compromise on 26.4.1972.

(3.) It is submitted by the learned counsel for the appellants that the property in question was also subject matter of the previous civil suit i.e. Civil Suit No.2-A/63 (2-A/69) in which the respondent/plaintiff Khatoon Bi was also a party and in which she had filed a written statement admitting the claim of the plaintiff therein and in such circumstances she cannot turn around and claim 1/6th share after a lapse of a long period of time. It is further submitted that once the compromise decree was passed by the court on 26.4.1972 and the matter as far as division of the property is concerned, stood finally concluded, the respondent/plaintiff could not have been permitted to challenge the said settlement of the property after a long lapse of time when a gift of part of it was made by Hamid Raza. It is submitted that the court below has failed to appreciate the aforesaid aspect in their proper perspective and, therefore, the impugned judgment and decree passed by the court below deserves to be set aside.